Kevin D. Hamlet v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Sep 28 2018, 11:11 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Kevin D. Hamlet Curtis T. Hill, Jr.
Greencastle, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kevin D. Hamlet, September 28, 2018
Appellant-Petitioner, Court of Appeals Case No.
18A-PC-142
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Helen W. Marchal,
Appellee-Respondent. Judge
The Honorable Stanley E. Kroh,
Magistrate
Trial Court Cause No.
49G15-1703-PC-11760
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-142 | September 28, 2018 Page 1 of 8
Case Summary
[1] On August 4, 2016, Kevin Hamlet pled guilty to Level 6 felony theft and
subsequently filed a petition for post-conviction relief (“PCR”). Following an
evidentiary hearing, the post-conviction court denied Hamlet’s petition.
Hamlet raises a number of arguments on appeal, which we restate as whether
the post-conviction court (1) correctly denied his PCR petition and (2) properly
weighed the evidence. We affirm.
Facts and Procedural History
[2] On June 23, 2016, Hamlet was charged with Class A misdemeanor theft after
he was caught trying to deprive Walmart of the value of certain containers of
beer and liquor. The charge was enhanced to a Level 6 felony because of a
prior conviction. Hamlet pled guilty to the enhanced Level 6 felony charge.
The trial court subsequently accepted Hamlet’s plea, entered judgment of
conviction for Level 6 felony theft, and sentenced Hamlet to a two-year term,
all of which was to be executed in community corrections. Hamlet filed a PCR
petition on November 15, 2016. Following an evidentiary hearing, the post-
conviction court denied Hamlet’s PCR petition.
Discussion and Decision
[3] Hamlet contends that the post-conviction court erred by denying his PCR
petition, arguing that his trial counsel provided ineffective assistance that
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rendered his guilty plea involuntary. Hamlet also contends that the post-
conviction court failed to appropriately credit certain evidence.
I. Standard of Review
[4] “Post-conviction procedures do not afford the petitioner with a super-appeal.”
Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). “Instead, they create a
narrow remedy for subsequent collateral challenges to convictions, challenges
which must be based on grounds enumerated in the post-conviction rules.” Id.
A petitioner who has been denied relief appeals from a negative judgment and
as a result, faces a rigorous standard of review on appeal. Dewitt v. State, 755
N.E.2d 167, 169 (Ind. 2001); Colliar v. State, 715 N.E.2d 940, 942 (Ind. Ct. App.
1999), trans. denied.
[5] Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739,
745 (Ind. 2002). Therefore, in order to prevail, a petitioner must establish his
claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);
Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition,
a petitioner must convince this court that the evidence, taken as a whole, leads
unmistakably to a conclusion opposite that reached by the post-conviction
court. Stevens, 770 N.E.2d at 745. “It is only where the evidence is without
conflict and leads to but one conclusion, and the post-conviction court has
reached the opposite conclusion, that its decision will be disturbed as contrary
to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied.
“The post-conviction court is the sole judge of the weight of the evidence and
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the credibility of the witnesses.” Fisher v. State, 810 N.E.2d 674, 679 (Ind.
2004).
II. Denial of Hamlet’s PCR Petition
[6] Hamlet contends that the trial court erred by denying his PCR petition because
his trial counsel provided ineffective assistance that rendered his guilty plea
involuntary. “The right to effective counsel is rooted in the Sixth Amendment
to the United States Constitution.” Taylor v. State, 840 N.E.2d 324, 331 (Ind.
2006). A successful claim for ineffective assistance of counsel must satisfy two
components. Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). Under the first
prong, the petitioner must establish that counsel’s performance was deficient by
demonstrating that counsel’s representation “fell below an objective standard of
reasonableness, committing errors so serious that the defendant did not have
the ‘counsel’ guaranteed by the Sixth Amendment.” Id. (internal quotation
omitted). We recognize that even the finest, most experienced criminal defense
attorneys may not agree on the ideal strategy or most effective way to represent
a client, and therefore, under this prong, we will assume that counsel performed
adequately and defer to counsel’s strategic and tactical decisions. Smith v. State,
765 N.E.2d 578, 585 (Ind. 2002). “Isolated mistakes, poor strategy,
inexperience, and instances of bad judgment do not necessarily render
representation ineffective.” Id.
[7] Under the second prong, the petitioner must show that the deficient
performance resulted in prejudice. Reed, 866 N.E.2d at 769. A petitioner’s
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failure to satisfy either prong will cause the ineffective assistance of counsel
claim to fail. See Williams, 706 N.E.2d at 154. Stated differently, “[a]lthough
the two parts of the Strickland test are separate inquires, a claim may be
disposed of on either prong.” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.
2006) (citing Williams, 706 N.E.2d at 154).
[8] “There are two different types of ineffective assistance of counsel claims that
can be made in regards to guilty pleas: (1) failure to advise the defendant on an
issue that impairs or overlooks a defense and (2) an incorrect advisement of
penal consequences.” McCullough v. State, 987 N.E.2d 1173, 1176 (Ind. Ct.
App. 2013). Where, as here, a petitioner raises a claim relating to penal
consequences, “a petitioner must establish, by objective facts, circumstances
that support the conclusion that counsel’s errors in advice as to penal
consequences were material to the decision to plead.” Segura v. State, 749
N.E.2d 496, 507 (Ind. 2001). “Merely alleging that the petitioner would not
have pleaded is insufficient.” Id. “Rather, specific facts, in addition to the
petitioner’s conclusory allegation, must establish an objective reasonable
probability that competent representation would have caused the petitioner not
to enter a plea.” Id.
[9] Hamlet argues that his trial counsel provided deficient performance and makes
the conclusory allegation that he would not have pled guilty but for this
deficient performance. Review of the record, however, does not support
Hamlet’s claim that his trial counsel provided deficient performance. Hamlet
asserts that he only pled guilty after his trial counsel informed him that the
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deputy prosecutor threatened to seek a habitual-offender enhancement if he
requested discovery. Trial counsel, however, testified that the deputy
prosecutor never threatened to file a habitual enhancement and both she and
the deputy prosecutor knew that Hamlet was not habitual-eligible because he
was facing an enhanced charge. Trial counsel explained that language in the
plea agreement referring to the State’s decision not to file a habitual
enhancement was “surplusage” and was inadvertently included. PCR Tr. p. 27.
Trial counsel did not remember the trial court making any comment about a
habitual enhancement beyond reading the term of the plea agreement that the
State would not seek a habitual enhancement.1
[10] Trial counsel further indicated that while she had conversations with Hamlet
about potential outcomes, she never discussed a potential habitual
enhancement, explaining that “[i]t wasn’t appropriate because he wasn’t
habitual[-]eligible in this case.” PCR Tr. p. 29. Trial counsel remembered
Hamlet as wishing to resolve the matter quickly because he was facing
additional criminal penalties in an unrelated matter that was pending in a
different criminal court. Hamlet never asked trial counsel to conduct discovery
or indicated that he wished to proceed to trial. Pursuant to what she deemed to
be Hamlet’s wishes, trial counsel worked to obtain the best plea deal possible
1
Hamlet also argues that the deputy prosecutor, his trial counsel, and the trial court made comments during
the guilty plea hearing that renewed and repeated the alleged threat. Hamlet acknowledged during the
evidentiary hearing that the transcript of the guilty plea hearing is not consistent with his recollection of the
alleged comments but claims that he believes the transcript is inaccurate.
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for Hamlet. Trial counsel testified during the post-conviction evidentiary
hearing that she did not believe that the habitual-offender issue was a factor in
Hamlet’s decision to plead guilty.
[11] In denying Hamlet’s PCR petition, the post-conviction court explicitly stated
that it found trial counsel’s testimony more credible than that of the Petitioner.
We will not disturb the post-conviction court’s credibility determinations on
appeal. See Fisher, 810 N.E.2d at 679 (providing that the post-conviction court
is the sole judge of the credibility of the witnesses). The record indicates that
trial counsel appropriately discussed the potential penalties Hamlet faced and
worked to resolve the case in accordance with Hamlet’s wishes. Thus, like the
post-conviction court, we conclude that Hamlet failed to prove that his trial
counsel rendered deficient performance. Hamlet, therefore has failed to prove
that he received ineffective assistance of trial counsel. See Grinstead, 845 N.E.2d
at 1031 (providing that a claim of ineffective assistance may be disposed of on
either the deficient performance or prejudice prong).
II. Weight of Evidence
[12] Hamlet also contends that the post-conviction court failed to properly weigh
evidence relating to the audio recording of the guilty plea hearing. 2 On August
17, 2017, the post-conviction court made an entry on the chronological case
2
To the extent that Hamlet challenges the trial court’s failure to review recordings of his phone
conversations with trial counsel prior to the guilty plea hearing, Hamlet failed to provide any such recordings
to the post-conviction court.
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summary indicating that the court “has reviewed the audio of the guilty plea
hearing and will consider same when reviewing the parties[’] proposed findings
of fact and conclusions of law.” Appellant’s App. Vol. II, p. 24. Hamlet claims
“[l]ogic and reason determine that, if the Court heard anything other than what
Hamlet stated from the beginning, especially alleging a manifest injustice, the
Court would have clearly stated it then during its entry when there was no need
to consider anything else.” Appellant’s Br. p. 27 (emphasis omitted). However,
we believe the more reasonable inference is that given the post-conviction
court’s conclusion that Hamlet was not entitled to relief, the audio recording of
the guilty plea hearing did not support Hamlet’s recollection of the statements
allegedly made during the hearing. Again, the post-conviction court is the sole
judge of the weight of the evidence. Fisher, 810 N.E.2d at 679. Hamlet’s claim
effectively amounts to a request that this court reweigh the evidence, which we
will not do. See Wilkerson v. State, 728 N.E.2d 239, 243 (Ind. Ct. App. 2000)
(providing that we will neither reweigh the evidence nor judge the credibility of
the witnesses on appeal).
[13] The judgment of the post-conviction court is affirmed.
Bailey, J., and Mathias, J., concur.
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